Citation Nr: 1504970
Decision Date: 02/03/15 Archive Date: 02/09/15
DOCKET NO. 12-09 823 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
THE ISSUES
1. Entitlement to service connection for a left wrist ganglion cyst.
2. Entitlement to service connection for a disability for numbness of the extremities, to include as due to an undiagnosed illness.
3. Entitlement to service connection for a sleep disorder, claimed as sleep apnea, to include as due to an undiagnosed illness.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Havelka, Counsel
INTRODUCTION
The Veteran served on active duty from May 2006 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 Regional Office in San Diego, California. The Veteran now lives in the jurisdiction of the VA RO in Buffalo, New York.
The issue involving service connection for a sleep disorder is addressed in the Remand portion of the decision below.
FINDINGS OF FACT
1. Service treatment records reveal a diagnosis of left wrist ganglion cyst, which was present during the appeal period.
2. Service treatment records reveal that the Veteran reported complaints of upper extremity paresthesia on separation examination, with normal clinical findings.
3. VA examination in September 2012 does not reveal any objective signs or symptoms of numbness of any of the Veteran's extremities; he testified that the numbness had resolved.
CONCLUSIONS OF LAW
1. A left wrist ganglion cyst was incurred in active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 2014); 38 C.F.R. § 3.303 (2014).
2. A disorder manifested by numbness of the extremities was not incurred in, or aggravated by, active military service, and is not a disability due to an undiagnosed illness. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.317 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Notice and Assistance
VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014).
The Veteran was provided the requisite notice with respect to his claims for service connection in May 2010 which was prior to the initial RO rating decision denying the benefits sought. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has alleged or demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).
VA has obtained service treatment records; VA medical records; VA examination reports; assisted the Veteran in obtaining evidence; and, afforded him the opportunity to testimony, written statements, and evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded a VA examination in September 2012, and this examination is adequate with respect to the claims adjudicated in this decision. 38 U.S.C.A. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Shade v. Shinseki, 24 Vet. App. 110 (2010). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
II. Left Wrist Ganglion Cyst
Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
The Veteran filed his claim for service connection for a left ganglion cyst during his processing for separation from service in May 2010. At that time, a separation examination of the Veteran was conducted; an abnormality of the upper extremities was noted and diagnosed as a left wrist ganglion cyst by the examining physician. By the time a VA examination of the Veteran was conducted September 2012, no ganglion cyst was found to be present. At the September 2013 hearing, the Veteran testified that his left wrist ganglion cyst improves and recurs.
The RO denied service connection on the basis that the Veteran's left wrist ganglion cyst was not "chronic," based on the lack of finding of the disorder in the 2012 VA examination. Without a current disability, there can be no entitlement to compensation. McLain v. Nicholson, 21 Vet. App. 319 (2007). However, the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. Id. In the present case, the separation examination report shows a clear diagnosis of a left wrist ganglion cyst present at the time the Veteran filed his claim for service connection, which was just prior to separation from service. Accordingly, the evidence shows that that a left wrist ganglion cyst was incurred during active service, and service connection is warranted.
III. Numbness of the Extremities
VA compensation is warranted to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness.
Objective indications of chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more, and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period are considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a).
The signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to fatigue; signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep, gastrointestinal signs or symptoms, cardiovascular signs or symptoms,; abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b).
The evidence establishes that the Veteran served in the required geographical area during active duty for consideration of claims for service connection due to an undiagnosed illness. See 38 C.F.R. § 3.317(e).
In April 2010, a service separation examination of the Veteran was conducted. At that time, he reported experiencing frequent tingling in his limbs since 2008 and that his hands and feet would "fall asleep." On clinical evaluation the lower extremities were "normal," with no abnormalities noted by the examining physician. Although the examiner noted that the Veteran reported complaints of upper extremity paresthesia, the only abnormality of the upper extremity noted by the examining physician was a left wrist ganglion cyst.
In September 2012, a VA examination of the Veteran was conducted and neurologic examination was completely normal; there were no objective neurological signs or symptoms. The Veteran denied having any symptoms of numbness and tingling of the extremities.
At his hearing before the Board in September 2013, the Veteran reported that near the end of his active duty he noticed that he had symptoms of his extremities going numb and "falling asleep." He further testified that he no longer had the symptoms and had not had such symptoms in a while; he was no longer concerned about them.
The evidence of record shows that the Veteran reported complaints of neurologic symptoms of tingling and numbness of the extremities at his separation examination. However, the service separation examination and the recent VA examination do not reveal any objective indications of chronic neurologic disability. Moreover, the Veteran testified that he no longer had symptoms of tingling and numbness in the extremities. Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for a disability claimed as numbness of the extremities, to include as due to an undiagnosed illness. Therefore, the benefit-of-the-doubt rule does not apply and service connection for numbness of the extremities is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Service connection for a left wrist ganglion cyst is granted.
Service connection for numbness of the extremities, to include as due to an undiagnosed illness, is denied.
REMAND
The Veteran initially filed a claim for sleep apnea. The September 2012 VA examination found that a diagnosis of sleep apnea was warranted. However, the Veteran reported symptoms for sleep disturbance, to include difficulty falling and staying asleep. The VA examination conducted in 2012 does not appear to adequately address signs or symptoms of sleep disturbance which may be manifestations of undiagnosed illness under 38 C.F.R. § 3.317(b). When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, an additional examination is necessary.
Accordingly, the case is remanded for the following action:
1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the claim for service connection. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received.
All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond.
2. The Veteran must be afforded that appropriate VA examination for chronic sleep disturbance as manifestation of undiagnosed illness under 38 C.F.R. § 3.317(b). The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, including sleep study must be accomplished.
Based on a review of all the evidence of record, the clinical evaluation, and with consideration of the Veteran's statements, the examiner must indicate if the Veteran has a current sleep disorder which is related to the Veteran's active duty, or if he has objective signs of a chronic sleep disturbance as a manifestation of undiagnosed illness.
A complete rationale for the opinion must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.
3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the evidence of record that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the evidence of record demonstrating any notice that was sent was returned as undeliverable.
4. The medical examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, corrective procedures must be implemented.
5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim for service connection for a sleep disorder, to include as due to an undiagnosed illness, remaining on appeal must be re-adjudicated. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After he has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs